**Exhibit 10.1**

 

**Form of 2005 StockOption and Incentive Plan Incentive Stock Option Agreement (4 year vestingschedule)**

 

ACUSPHERE, INC.

INCENTIVE STOCK OPTION AGREEMENT

 

Acusphere, Inc.(the “Company”) hereby grants the following stock option pursuant to its2005 Stock Option and Incentive Plan. The terms and conditions attached hereto are also a part hereof.

 
| Name of optionee  (the “Optionee”):                                                     |   |
|---------------------------------------------------------------------------------------------------|--------|
|                                                                                              |   |
| Date of this  option grant:                                                                       |   |
|                                                                                              |   |
| Number of shares  of the Company’s Common Stock subject to this option (“Shares”): |   |
|                                                                                              |   |
| Option exercise  price per share:                                                                 |   |
|                                                                                              |   |
| Shares that are  subject to vesting schedule:                                                     |   |
|                                                                                              |   |
| Vesting Start  Date:                                                                              |   |

 

VestingSchedule:

 
| Vesting Start  Date:                                                                                            | 0%                                             |
|-----------------------------------------------------------------------------------------------------------------|------------------------------------------------|
|                                                                                                            |                                           |
| On or after  [  ] but prior to [  ]:                                                                  | 2.083% per month                               |
|                                                                                                            |                                           |
| On or after  [  ]:                                                                                         | 100% *[four years after Vesting Start Date]*   |
|                                                                                                            |                                           |
| All vesting is  dependent on the continuation of a Business Relationship with the Company, as  provided herein. |
|                                                                                                            |
| Payment  alternatives:                                                                                          | Section 7(a) (i) through  (iii) |

 

Thisoption satisfies in full all commitments that the Company has to the Optioneewith respect to the issuance of stock, stock options or other equitysecurities.

 
|                   |   | Acusphere, Inc. |
|------------------------|--------|----------------------|
|                   |   |                 |   |
| Signature of  Optionee |   | By:                  |   |
|                   |   |                 | Name of Officer: |
| Street Address         |   |                 | Title: |
|                   |   |                 |   |
| City/State/Zip  Code   |   |                 |   |

 

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ACUSPHERE, INC.

 

INCENTIVE STOCK OPTION AGREEMENT — INCORPORATED TERMSAND CONDITIONS

 

1.                                       GrantUnder Plan.  This option is grantedpursuant to and is governed by the Company’s 2005 Stock Option and IncentivePlan (the “Plan”) and, unless the context otherwise requires, terms usedherein shall have the same meaning as in the Plan.

 

2.                                       Grantas Incentive Stock Option.  Thisoption is intended to qualify as an incentive stock option under Section 422of the Internal Revenue Code of 1986, as amended, and the regulations thereunder(the “Code”), but the Company does not represent or warrant that thisoption so qualifies.  To the extent thatthis option does not qualify as an incentive stock option, it shall be anon-statutory stock option.

 

3.                                       Vestingof Option.

 

(a)                                  Vestingif Business Relationship Continues. The Optionee may exercise the vestedportion of this option on or after the date of this option grant for the numberof shares of Common Stock, if any, set forth on the cover page hereof.  If the Optionee has continuously maintained aBusiness Relationship (as defined below) with the Company through the dateslisted on the vesting schedule set forth on the cover page hereof,the Optionee may exercise this option for the additional number of shares ofCommon Stock set opposite the applicable vesting date.  Notwithstanding the foregoing, the Board may,in its discretion, accelerate the date that any installment of this optionbecomes exercisable.  The foregoingrights are cumulative and may be exercised only before the date which is tenyears from the date of this option grant.

 

(b)  Definitions. The followingdefinitions shall apply:

 

“Business Relationship” means service to theCompany or its successor in the capacity of an employee, officer, director orconsultant.

 

“Cause” means: (i) gross negligence orwillful malfeasance in the performance of the Optionee’s work or a breach offiduciary duty or confidentiality obligations to the Company by the Optionee; (ii) failureto follow the proper directions of the Optionee’s direct or indirect supervisorafter written notice of such failure; (iii) the commission by the Optioneeof illegal conduct relating to the Company; (iv) disregard by the Optioneeof the material rules or material policies of the Company which has notbeen cured within 15 days after notice thereof from the Company; or (v) intentionalacts on the part of the Optionee that have generated material adverse publicitytoward or about the Company.

 

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4.                                       Terminationof Business Relationship.

 

(a)                                  Termination.  If the Optionee’s Business Relationship withthe Company ceases, voluntarily or involuntarily, with or without cause, nofurther installments of this option shall become exercisable, and this optionshall expire (may no longer be exercised) after the passage of sixty days fromthe date of termination, but in no event later than the scheduled expirationdate.  Any determination under thisagreement as to the status of a Business Relationship or other matters referredto above shall be made in good faith by the Board of Directors of the Company.

 

(b)                                 EmploymentStatus. For purposes hereof, with respect to employees of the Company,employment shall not be considered as having terminated during any**leave of absence if such leave of absence has been approvedin writing by the Company and if such written approval contractually obligatesthe Company to continue the employment of the Optionee after the approvedperiod of absence; in the event of such an approved leave of absence, vestingof this option shall be suspended (and the period of the leave of absence shallbe added to all vesting dates) unless otherwise provided in the Company’swritten approval of the leave of absence. For purposes hereof, a termination of employment followed by anotherBusiness Relationship shall be deemed a termination of the BusinessRelationship with all vesting to cease unless the Company enters into a writtenagreement related to such other Business Relationship in which it isspecifically stated that there is no termination of the Business Relationshipunder this agreement. This option shall not be affected by any change ofemployment within or among the Company and its Subsidiaries so long as theOptionee continuously remains an employee of the Company or any Subsidiary.

 

(c)                                  Terminationfor Cause.  If the BusinessRelationship of the Optionee is terminated for Cause (as defined above), thisoption may no longer be exercised from and after the Optionee’s receipt ofwritten notice of such termination.

 

5.                                       Death;Disability.

 

(a)                                  Death.  Upon the death of the Optionee while theOptionee is maintaining a Business Relationship with the Company, this optionmay be exercised, to the extent otherwise exercisable on the date of theOptionee’s death, by the Optionee’s estate, personal representative orbeneficiary to whom this option has been transferred pursuant to Section 9,only at any time within 180 days after the date of death, but not laterthan the scheduled expiration date.

 

(b)                                 Disability.  If the Optionee ceases to maintain a BusinessRelationship with the Company by reason of his or her disability, this optionmay be exercised, to the extent otherwise exercisable on the date of cessationof the Business Relationship, only at any time within 180 days after suchcessation of the Business Relationship, but not later than the scheduledexpiration date.  For purposes hereof, “disability”means “permanent and total disability” as defined in Section 22(e)(3) ofthe Code.

 

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6.                                       PartialExercise.  This option may beexercised in part at any time and from time to time within the above limits,except that this option may not be exercised for a fraction of a share.

 

7.                                       Paymentof Exercise Price.  The exerciseprice shall be paid by one or any combination of the following forms of paymentthat are applicable to this option, as indicated on the cover page hereof:

 

#### (a)                                  in cash, by certified or bank check or otherinstrument acceptable to the Administrator and payable to the order of theCompany;

####  

#### (b)                                 through the delivery (or attestation to theownership) of shares of Stock that have been purchased by the Optionee on theopen market or that are beneficially owned by the Optionee and are not thensubject to restrictions under any Company plan. Such surrendered shares shall be valued at Fair Value on the exercisedate; or

####  

#### (c)                                  By the Optionee delivering to the Company aproperly executed exercise notice together with irrevocable instructions to abroker to promptly deliver to the Company cash or a check payable andacceptable to the Company for the purchase price; provided that in the eventthe Optionee chooses to pay the purchase price as so provided, the Optionee andthe broker shall comply with such procedures and enter into such agreements ofindemnity and other agreements as the Administrator shall prescribe as acondition of such payment procedure.

####  

Payment instruments will be received subject tocollection.  The transfer to the Optioneeon the records of the Company or the transfer agent of the shares of Stock tobe purchased pursuant to the exercise of a Stock Option will be contingent uponreceipt from the Optionee (or a purchaser acting in his stead in accordancewith the provisions of the Stock Option) by the Company of the full purchaseprice for such shares and the fulfillment of any other requirements includedherein or applicable provisions of laws (including the satisfaction of anywithholding taxes that the Company is obligated to withhold with respect to theOptionee).  In the event the Optioneechooses to pay the purchase price by previously-owned shares of Stock throughthe attestation method, the number of shares of Stock transferred to theoptionee upon the exercise of the Stock Option shall be net of the number ofshares attested to.

 

8.                                       Methodof Exercising Option.  Subject to theterms and conditions of this agreement, this option may be exercised by writtennotice to the Company at its principal executive office, or to such transferagent as the Company shall designate. Such notice shall state the election to exercise this option and thenumber of Shares for which it is being exercised and shall be signed by theperson or persons so exercising this option. Such notice shall be accompanied by payment of the full purchase priceof such shares, and the Company shall deliver a certificate or certificatesrepresenting such shares as soon as practicable after the notice shall bereceived.  Such certificate or certificatesshall be registered in the name of the person or persons so exercising thisoption (or, if this option shall be exercised by the Optionee and if theOptionee shall so request in the notice exercising this option, shall beregistered in the name of the Optionee and another person jointly, with rightof survivorship). In the event this option shall be exercised, pursuant to Section 5hereof, by any person or persons other than the Optionee, 

 

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such notice shall beaccompanied by appropriate proof of the right of such person or persons toexercise this option.

 

9.                                       OptionNot Transferable.  This option is nottransferable or assignable except by will or by the laws of descent anddistribution.  During the Optionee’slifetime only the Optionee can exercise this option.

 

10.                                 NoObligation to Exercise Option.  Thegrant and acceptance of this option imposes no obligation on the Optionee toexercise it.

 

11.                                 NoObligation to Continue Business Relationship.  Neither the Plan, this agreement, nor thegrant of this option imposes any obligation on the Company to continue theOptionee in employment or other Business Relationship.

 

12.                                 Adjustments.  Except as is expressly provided in the Planwith respect to certain changes in the capitalization of the Company, noadjustment shall be made for dividends or similar rights for which the recorddate is prior to such date of exercise.

 

13.                                 WithholdingTaxes.  If the Company in itsdiscretion determines that it is obligated to withhold any tax in connection withthe exercise of this option, or in connection with the transfer of, or thelapse of restrictions on, any Common Stock or other property acquired pursuantto this option, the Optionee hereby agrees that the Company may withhold fromthe Optionee’s wages or other remuneration the appropriate amount of tax. Atthe discretion of the Company, the amount required to be withheld may bewithheld in cash from such wages or other remuneration or in kind from theCommon Stock or other property otherwise deliverable to the Optionee onexercise of this option.  The Optioneefurther agrees that, if the Company does not withhold an amount from theOptionee’s wages or other remuneration sufficient to satisfy the withholdingobligation of the Company, the Optionee will make reimbursement on demand, incash, for the amount underwithheld.

 

14.                                 EarlyDisposition.  The Optionee agrees tonotify the Company in writing immediately after the Optionee transfers anyShares, if such transfer occurs on or before the later of (a) the datethat is two years after the date of this agreement or (b) the date that isone year after the date on which the Optionee acquired such Shares.  The Optionee also agrees to provide theCompany with any information concerning any such transfer required by theCompany for tax purposes.

 

15.                                 Arbitration.  Any dispute, controversy, or claim arisingout of, in connection with, or relating to the performance of this agreement orits termination shall be settled by arbitration in the Commonwealth ofMassachusetts, pursuant to the rules then obtaining of the AmericanArbitration Association. Any award shall be final, binding and conclusive uponthe parties and a judgment rendered thereon may be entered in any court havingjurisdiction thereof.

 

16.                                 Provisionof Documentation to Optionee.  Bysigning this agreement the Optionee acknowledges receipt of a copy of thisagreement and a copy of the Plan.

 

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17                                    Miscellaneous.

 

(a)                                  Notices.  All notices hereunder shall be in writing andshall be deemed given when sent by mail, if to the Optionee, to the address setforth below or at the address shown on the records of the Company, and if tothe Company, to the Company’s principal executive offices, attention of theCorporate Secretary.

 

(b)                                 EntireAgreement; Modification.  Thisagreement constitutes the entire agreement between the parties relative to thesubject matter hereof, and supersedes all proposals, written or oral, and allother communications between the parties relating to the subject matter of thisagreement. This agreement may be modified, amended or rescinded only by awritten agreement executed by both parties.

 

(c)                                  FractionalShares. If this option becomes exercisable for a fraction of a sharebecause of the adjustment provisions contained in the Plan, such fraction shallbe rounded down.

 

(d)                                 Issuancesof Securities; Changes in Capital Structure. Except as expressly providedherein or in the Plan, no issuance by the Company of shares of stock of anyclass, or securities convertible into shares of stock of any class, shallaffect, and no adjustment by reason thereof shall be made with respect to, thenumber or price of shares subject to this option.  No adjustments need be made for dividendspaid in cash or in property other than securities of the Company. If thereshall be any change in the Common Stock of the Company through merger,consolidation, reorganization, recapitalization, stock dividend, stock split,combination or exchange of shares, spin-off, split-up or other similar changein capitalization or event, the restrictions contained in this agreement shallapply with equal force to additional and/or substitute securities, if any,received by the Optionee in exchange for, or by virtue of his or her ownershipof, Shares, except as otherwise determined by the Board.

 

(e)                                  Severability.  The invalidity, illegality orunenforceability of any provision of this agreement shall in no way affect thevalidity, legality or enforceability of any other provision.

 

(f)                                    Successorsand Assigns.  This agreement shall bebinding upon and inure to the benefit of the parties hereto and theirrespective successors and assigns, subject to the limitations set forth in Section 9hereof.

 

(g)                                 GoverningLaw.  This agreement shall be governedby and interpreted in accordance with the laws of the State of Delaware withoutgiving effect to the principles of the conflicts of laws thereof.

 

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